State v. L. W. , 333 Or. App. 633 ( 2024 )

No. 470 July 3, 2024 633
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of L. W.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
L. W.,
Appellant.
Multnomah County Circuit Court
23CC02563; A181265
Benjamin S. Johnston, Judge.
Argued and submitted May 23, 2024.
Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
TOOKEY, P. J.
Affirmed.
634 State v. L. W.
TOOKEY, P. J.
Appellant appeals a judgment involuntarily com-
mitting him to the Oregon Health Authority (OHA) for up
to 180 days and prohibiting him from possessing firearms,
ORS 426.130(4), based on the trial court’s finding that, as
a result of a mental illness, he is a danger to others. See
ORS 426.005(1)(f)(A). Appellant raises three assignments of
error. In his first two assignments of error, appellant con-
tends that the trial court erred when it violated protections
afforded to appellant under ORS chapter 426 as a person
facing civil commitment. Although appellant did not pre-
serve those issues, he contends that they amount to revers-
ible plain error. As explained below, we conclude that there
was no plain error. In his third assignment of error, appel-
lant raises facial and as-applied constitutional challenges to
the firearms prohibition in ORS 426.130(4) under the Second
Amendment and New York State Rifle and Pistol Assn., Inc.
v. Bruen, 597 US 1, 142 S Ct 2111, 213 L Ed 2d 387 (2022).
As explained below, we conclude that that issue is resolved
by our decision in State v. H. N., 330 Or App 482, 545 P3d
186 (2024). We affirm.
Appellant’s First and Second Assignments of Error.
On April 25, 2023, appellant was admitted to the hospital
and placed on an emergency mental health hold under ORS
426.232(1)(a) and was detained until his commitment hear-
ing on May 2. On May 1, the day before the hearing, the
court issued a citation, which included advice to appellant of
his right to counsel. At the hearing on May 2, the trial court
advised appellant that counsel had been appointed, and
appellant was represented by that counsel. Following wit-
ness testimony and examination of appellant, the trial court
found that appellant was a person suffering from a mental
illness and that he was a danger to others. After the hear-
ing, on May 2, the court signed an “Order before Hearing,”
advising appellant of the appointment of legal counsel “as of
April 28, 2023.”
In his first assignment of error, appellant contends
that the trial court plainly erred in failing to advise appel-
lant of his right to counsel until the day before the hearing,
and in delaying the “formal” appointment of counsel until
Nonprecedential Memo Op: 333 Or App 633 (2024) 635
after the hearing. ORS 426.234(1)(a) provides that when a
person is detained, hospital staff must “[i]nform the person
of the person’s right to representation by or appointment of
counsel as described in ORS 426.100[.]” ORS 426.100 pro-
vides that “the court shall appoint suitable legal counsel[,]”
ORS 424.100(3)(d), and that “the right * * * to contact an
attorney or * * * to have an attorney appointed may be exer-
cised as soon as reasonably possible[,]” ORS 424.100(3)(e). In
appellant’s view, those provisions required the trial court
to appoint counsel earlier than it did, and, in waiting until
after the hearing to “formally” appoint counsel, the trial
court failed to “strictly adhere” to the protections afforded
to appellant under ORS chapter 426.
The record reflects that appellant had notice of the
right to counsel the day before the hearing and had coun-
sel at the hearing. We conclude that it is not obvious that
ORS 426.100(3)(e) required the trial court to appoint counsel
earlier than it did, as the statute does not impose a spe-
cific timeframe for the appointment of counsel. Additionally,
as the state points out, there is no evidence that appellant
attempted to exercise his right to counsel before the court
appointed counsel. Under those circumstances, it is not
plain that the trial court’s appointment process was errone-
ous under ORS 426.100(3)(e). See State v. Vanornum, 354 Or
614, 629, 317 P3d 889 (2013) (“For an error to be plain error,
it must be an error of law, obvious and not reasonably in
dispute, and apparent on the record without requiring the
court to choose among competing inferences.”).
In his second assignment of error, appellant con-
tends that the trial court plainly erred in conducting the
hearing and committing appellant despite multiple failures
by the examiner to meet the requirements of ORS chapter
426. We have reviewed those arguments and conclude that,
with one exception, it is not obvious that the examiner’s pre-
hearing preparation, examination of appellant during the
hearing, or report to the court violated the requirements of
ORS chapter 426 or related administrative rules.
We agree with appellant and the state that the exam-
iner’s report did not comply with the requirements of ORS
426.120(2)(a), because it did not “include a recommendation
636 State v. L. W.
as to the type of treatment facility best calculated to help
the person recover from mental illness.” However, as the
state points out, the examiner’s omission of a recommen-
dation would not have affected the trial court’s decision
to commit appellant, because a recommendation as to the
type of treatment facility did not relate to the initial deter-
mination of whether appellant was a “person with a men-
tal illness” under ORS 426.005(1)(f). Further, under ORS
426.060(2), the OHA has the ultimate authority to “direct
any court-committed person to the facility best able to treat
the person[.]” In view of those circumstances, if and to the
extent that the deficiency gave rise to error, we decline to
exercise our discretion to correct it.
Appellant’s Third Assignment of Error. In his third
assignment of error, appellant raises a challenge to the fire-
arms prohibition that the trial court imposed under ORS
426.130(4). Appellant argues that that statute is uncon-
stitutional on its face under the Second Amendment and
Bruen.1 In H. N., we rejected that argument, determining
that restricting mentally ill persons’ access to firearms is
consistent with our nation’s history of regulating firearms,
“whether categorically or because they pose a danger to
themselves or to others,” and that ORS 426.130(4) is there-
fore constitutional. 330 Or App at 492.
Affirmed.
1
On appeal, appellant also raises an as-applied constitutional challenge to
ORS 426.130(4). We agree with the state that that challenge was unpreserved,
and we decline to address it.